DOCSLIB.ORG

Evidence Benchbook– Revised Edition Cover and Acknowledgments Title Page

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Evidence Benchbook– Revised Edition Cover and Acknowledgments Title Page Evidence Benchbook– Revised Edition Cover and Acknowledgments Title Page By The Honorable J. Richardson Johnson Circuit Court Judge Ninth Judicial Circuit Kalamazoo, Michigan Revised by Ms. Danielle Stackpole, J.D. Research Attorney Michigan Judicial Institute MICHIGAN JUDICIAL INSTITUTE © 2021 Michigan Supreme Court • The Honorable Bridget Mary McCormack, Chief Justice • The Honorable Elizabeth T. Clement, MJI Supervising Justice • The Honorable Brian K. Zahra, the Honorable David F. Viviano, the Honorable Richard H. Bernstein, the Honorable Megan K. Cavanagh, and the Honorable Elizabeth M. Welch, Justices • The Honorable Thomas P. Boyd, State Court Administrator • The Honorable Milton L. Mack, Jr., State Court Administrator Emeritus • Ms. Cami M. Pendell, Supreme Court General Counsel • Mr. Larry S. Royster, Supreme Court Clerk and Chief of Staff Michigan Judicial Institute Staff • Dawn F. McCarty, Director • Alessa Boes, Research Attorney Specialist • Amanda Clark, Judicial Education Analyst • Anne M. DeMarco, Program Assistant • Craig Dillon, Instructional Design and Content Developer • Rachael Drenovsky, Learning Center Coordinator • Amy Feinauer, Program Assistant • Phoenix Hummel, Research Attorney •Heather Leidi, Administrative Specialist • Sarah Roth, Publications Manager • Danielle Stackpole, Research Attorney • Peter C. Stathakis, Program Manager • Cathy Weitzel, Training & Development Specialist This original edition was initially published in 2010, and the text has been revised, reordered, and updated through August 18, 2021. This benchbook is not intended to be an authoritative statement by the Justices of the Michigan Supreme Court regarding any of the substantive issues discussed. ii Note on Precedential Value “A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this court rule.” MCR 7.215(J)(1). Several cases in this book have been reversed, vacated, or overruled in part and/or to the extent that they contained a specific holding on one issue or another. Generally, trial courts are bound by decisions of the Court of Appeals “until another panel of the Court of Appeals or [the Supreme] Court rules otherwise[.]” In re Hague, 412 Mich 532, 552 (1982). While a case that has been fully reversed, vacated, or overruled is no longer binding precedent, it is less clear when an opinion is not reversed, vacated, or overruled in its entirety. Some cases state that “an overruled proposition in a case is no reason to ignore all other holdings in the case.” People v Carson, 220 Mich App 662, 672 (1996). See also Stein v Home-Owners Ins Co, 303 Mich App 382, 389 (2013) (distinguishing between reversals in their entirety and reversals in part); Graham v Foster, 500 Mich 23, 31 n 4 (2017) (because the Supreme Court vacated a portion of the Court of Appeals decision, “that portion of the Court of Appeals’ opinion [had] no precedential effect and the trial court [was] not bound by its reasoning”). But see Dunn v Detroit Inter-Ins Exch, 254 Mich App 256, 262 (2002), citing MCR 7.215(J)(1) and stating that “a prior Court of Appeals decision that has been reversed on other grounds has no precedential value. [W]here the Supreme Court reverses a Court of Appeals decision on one issue and does not specifically address a second issue in the case, no rule of law remains from the Court of Appeals decision.” See also People v James, 326 Mich App 98 (2018) (citing Dunn and MCR 7.215(J)(1) and stating that the decision, “People v Crear, 242 Mich App 158, 165-166 (2000), overruled in part on other grounds by People v Miller, 482 Mich 540 (2008), . [was] not binding”). Note that Stein specifically distinguished its holding from the Dunn holding because the precedent discussed in Dunn involved a reversal in its entirety while the precedent discussed in Stein involved a reversal in part. The Michigan Judicial Institute endeavors to present accurate, binding precedent when discussing substantive legal issues. Because it is unclear how subsequent case history may affect the precedential value of a particular opinion, trial courts should proceed with caution when relying on cases that have negative subsequent history. The analysis presented in a case that is not binding may still be persuasive. See generally, Dunn, 254 Mich App at 264-266. iii Acknowledgments The original content of this benchbook was a chapter in the former Michigan Circuit Court Benchbook, originally written by former Judge J. Richardson Johnson. The benchbook was revised in 2009 and divided into three separate benchbooks: Civil Proceedings, Criminal Proceedings, and Evidence. Work on the 2010 edition of the Evidence Benchbook was completed by MJI staff and overseen by an Editorial Advisory Committee. Similarly, MJI Research Attorney Danielle Stackpole revised the 2021 revision and facilitated an Editorial Advisory Committee, while MJI Publications Manager Sarah Roth served as editor. Amy Feinauer, MJI Program Assistant, also assisted in the publication of this benchbook. MJI gratefully acknowledges the time, helpful advice, and expertise contributed by the Committee members, who are as follows: • The Honorable Michael C. Brown 1st District Court • The Honorable Joseph Farah 7th Circuit Court • The Honorable Christopher Ninomiya 41st Circuit Court • The Honorable Kristina Robinson Garrett 36th District Court • The Honorable Michael Servitto 16th Circuit Court • The Honorable Anna Rose Talaska Gogebic County Probate Court The Michigan Judicial Institute (MJI) was created in 1977 by the Michigan Supreme Court. MJI is responsible for providing a comprehensive continuing education program for judicial branch employees; assisting judicial associations and external organizations to plan and conduct training events; providing complete and up-to-date legal reference materials for judges, quasi-judicial hearing officers, and others; maintaining a reference library for use by judicial branch employees; and conducting tours of and other public outreach activities for the Michigan Supreme Court Learning Center. MJI welcomes comments and suggestions. Please send them to: Michigan Judicial Institute, PO Box 30048, Lansing, MI 48909, or call (517) 373–7171. iv Using This Benchbook This benchbook is intended for all Michigan judges. The purpose of this benchbook is to provide a single source to address evidentiary issues that may arise while the judge is on the bench. The benchbook is designed to be a ready reference, not an academic discussion. In that context, one of the most difficult challenges is organizing the text so that the user can readily find any topic as it arises. This book has underlying themes that may assist the user to understand the overarching concepts around which the book is organized. This book is based upon the following concepts: • The focus is on process rather than substantive law although substantive law is discussed when important or necessary to decision making and the process as a whole. • The text covers the routine issues that a judge may face and non-routine issues that require particular care when they arise. • The text is designed to encourage best practices rather than minimal compliance. • The text is intended to include the authority the judge needs to have at his or her fingertips to make a decision. • The text is designed to be read aloud or incorporated in a written decision. With these concepts in mind, the text is organized as follows: • The format generally follows the sequence of the Michigan Rules of Evidence. • The format generally follows the typical sequence in which issues arise during the course of a case. • At the beginning of each chapter is a table of contents that lists what is covered in the chapter. • Sections in each chapter are identified by the word or phrase typically used to identify the topic (a keyword concept). v • The discussion of each topic is designed to move from the general to the specific without undue elaboration. • If the court is required to consider particular factors when making a decision, every effort has been made to identify the necessary elements. • Every effort has been made to cite the relevant Michigan law using either the seminal case or the best current authority for a body of law. United States Supreme Court decisions are cited when Michigan courts are bound by that authority and they are the original source. There are references to federal decisions or decisions from other states when no applicable Michigan authority could be located. • Every effort has been made to cite the source for each statement (if no authority is cited for a proposition, then the statement is the author’s opinion or part of a committee tip). • If a proceeding or rule of evidence is based upon a statute, reference to that authority is given in the text. • If a model or standard jury instruction addresses an issue, it is referenced in the text. Statements in this benchbook represent the professional judgment of the author and are not intended to be authoritative statements by the Justices of the Michigan Supreme Court. vi Table of Contents Cover and Acknowledgments Title Page ........................................................................................................... i Michigan Supreme Court .................................................................................. ii Michigan
Load more

Recommended publications
  • Current Death Penalty Issues Michael Meltsner
    Journal of Criminal Law and Criminology Volume 74 Article 1 Issue 3 Fall Fall 1983 Current Death Penalty Issues Michael Meltsner Marvin E. Wolfgang Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Michael Meltsner, Marvin E. Wolfgang, Current Death Penalty Issues, 74 J. Crim. L. & Criminology 659 (1983) This Symposium is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/83/7403-659 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 74, No. 3 Copyright 0 1983 by Northwestern University School of Law Printedin US.A. INTRODUCTION In 1976, a divided United States Supreme Court upheld state capi- tal sentencing laws on the assumption that explicit sentencing guide- lines, separate sentencing hearings and automatic appellate review of all death sentences would remove the substantial risk of arbitrariness of previous capital punishment sentencing schemes.I Eight years later, the premises supporting the constitutionality of the new laws appear to have little practical currency. That a set of scholarly contributions from law- yers, criminologists, and other investigators would uncover flaws in the operation of the death-case legal system is not surprising; earlier re- search into the operation of the discretionary death penalty systems raised significant doubts about the reliability, fairness, and necessity of capital punishment and contributed to the Court's landmark 1972 deci- sion in Furman v.
    [Show full text]
  • Federal Rules of Evidence: 801-03, 901
    FEDERAL RULES OF EVIDENCE: 801-03, 901 Rule 801. Definitions The following definitions apply under this article: (a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. A "declarant" is a person who makes a statement. (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (d) Statements which are not hearsay. A statement is not hearsay if-- (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross- examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or (2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
    [Show full text]
  • Conditional Relevance and the Admissibility of Party Admissions Gerald F
    Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-2007 Conditional Relevance and the Admissibility of Party Admissions Gerald F. Uelmen Santa Clara University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Recommended Citation 36 Sw. U. L. Rev. 657 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. CONDITIONAL RELEVANCE AND THE ADMISSIBILITY OF PARTY ADMISSIONS Gerald F. Uelmen* I. INTRODUCTION ..................................................... 657 II. THE ALLOCATION OF RESPONSIBILITY FOR FINDING PRELIMINARY FACTS UNDER THE CALIFORNIA EVIDENCE C O D E ....................................................................................... 6 5 8 III. THE ALLOCATION OF RESPONSIBILITY FOR FINDING PRELIMINARY FACTS IN FEDERAL COURTS PRIOR TO B O URJA ILY .............................................................................. 66 1 IV. THE BOURJAILY DECISION AND ITS AFTERMATH ................... 664 V. POST-BOURJAILY CONFUSION IN THE FEDERAL COURT ........ 669 VI. WHAT DIFFERENCE DOES IT MAKE? ................. .. .. .. .. 672 I. INTRODUCTION Among the most significant differences between the Federal Rules of Evidence and the California Evidence Code is the allocation between
    [Show full text]
  • A History of Evidence in Medical Decisions: from the Diagnostic Sign to Bayesian Inference
    BRIEF REPORTS A History of Evidence in Medical Decisions: From the Diagnostic Sign to Bayesian Inference Dennis J. Mazur, MD, PhD Bayesian inference in medical decision making is a concept through the development of probability theory based on con- that has a long history with 3 essential developments: 1) the siderations of games of chance, and ending with the work of recognition of the need for data (demonstrable scientific Jakob Bernoulli, Laplace, and others, we will examine how evidence), 2) the development of probability, and 3) the Bayesian inference developed. Key words: evidence; games development of inverse probability. Beginning with the of chance; history of evidence; inference; probability. (Med demonstrative evidence of the physician’s sign, continuing Decis Making 2012;32:227–231) here are many senses of the term evidence in the Hacking argues that when humans began to examine Thistory of medicine other than scientifically things pointing beyond themselves to other things, gathered (collected) evidence. Historically, evidence we are examining a new type of evidence to support was first based on testimony and opinion by those the truth or falsehood of a scientific proposition respected for medical expertise. independent of testimony or opinion. This form of evidence can also be used to challenge the data themselves in supporting the truth or falsehood of SIGN AS EVIDENCE IN MEDICINE a proposition. In this treatment of the evidence contained in the Ian Hacking singles out the physician’s sign as the 1 physician’s diagnostic sign, Hacking is examining first example of demonstrable scientific evidence. evidence as a phenomenon of the ‘‘low sciences’’ Once the physician’s sign was recognized as of the Renaissance, which included alchemy, astrol- a form of evidence, numbers could be attached to ogy, geology, and medicine.1 The low sciences were these signs.
    [Show full text]
  • Evidence in Criminal Proceedings Hearsay and Related Topics
    Criminal Law EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS A Consultation Paper LAW COMMISSION CONSULTATION PAPER No 138 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Brooke, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 2BQ. This Consultation Paper, completed for publication on 11 May 1995, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on this Consultation Paper before 31 October 1995. All correspondence should be addressed to: Ms C Hughes Law Commission Conquest House 37-38 John Street Theobalds Road London WClN 2BQ (Tel: 0171- 453 1232) (Fax: 0171- 453 1297) It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent recommendations, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response is not intended to be confidential. The Law Commission Consultation Paper No 138 Criminal Law EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS
    [Show full text]
  • Assertion and Hearsay
    Volume 125 Issue 2 Winter 2021 Assertion and Hearsay Richard Lloret Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlr Part of the Civil Law Commons, Civil Procedure Commons, Common Law Commons, Courts Commons, Criminal Law Commons, Criminal Procedure Commons, Evidence Commons, Judges Commons, Jurisprudence Commons, Legal Education Commons, Legal Ethics and Professional Responsibility Commons, Legal Profession Commons, Legal Writing and Research Commons, Litigation Commons, State and Local Government Law Commons, and the Supreme Court of the United States Commons Recommended Citation Richard Lloret, Assertion and Hearsay, 125 DICK. L. REV. 347 (2021). Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol125/iss2/3 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. \\jciprod01\productn\D\DIK\125-2\DIK202.txt unknown Seq: 1 10-FEB-21 13:14 Assertion and Hearsay Richard A. Lloret* ABSTRACT This article explores the characteristics and functions of as- sertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) de- fines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades.
    [Show full text]
  • The Applicability of the Character Evidence Rule to Corporations
    KIM.DOC 12/20/00 2:32 PM CHARACTERISTICS OF SOULLESS PERSONS: THE APPLICABILITY OF THE CHARACTER EVIDENCE RULE TO CORPORATIONS ∗ Susanna M. Kim Under Federal Rule of Evidence 404, the character evidence rule, it is well established that evidence of character generally is not admissible to show that a person acted in conformity with that char- acter on a particular occasion. No consensus exists, however, as to whether the character evidence rule should also apply to corpora- tions. In this article, Professor Kim argues that the ban on character evidence should not be extended to corporations. Professor Kim be- gins with a discussion of various rationales offered to support the character evidence rule, emphasizing Kantian conceptions of human autonomy. She then examines varying definitions of “character” and concludes that character may best be regarded as a reflection of the internal operating system of the human organism. Next, Professor Kim turns to an analysis of the personhood of corporations and de- termines that corporations are persons and moral actors with the ca- pacity to possess character. This corporate character is separate and apart from the character of the corporation’s individual members and reflects the internal operating system of the corporate organization. Finally, Professor Kim suggests that the human autonomy ra- tionale for the character evidence rule does not apply with equal force to corporations. She then concludes with an examination of the prac- tical implications of excluding corporations from the protections af- forded individuals under Rule 404. To a seemingly ever-increasing extent the members of society, individual and corporate alike, are awash in an existential sea, out ∗ Associate Professor of Law, Chapman University School of Law.
    [Show full text]
  • Rationalization and Limitation: the Use of Learned Treatises to Impeach Opposing Expert Witnesses
    RATIONALIZATION AND LIMITATION: THE USE OF LEARNED TREATISES TO IMPEACH OPPOSING EXPERT WITNESSES Edward J. Imwinkelried* [O]therwise, an ignoramus in a profession might, by an assertion of learning, declare the most absurd theories to be the teachings of the science of which he was a professed expert . –Clark v. Commonwealth, 63 S.W. 740, 744 (Ky. 1901) INTRODUCTION The numbers tell the story of the importance of the topic. To begin with, it has become commonplace for litigators to present expert testimony at trial. In one study of over 500 trials, the researchers found that experts appeared as witnesses in 86% of the hearings.1 On average, there were 3.3 experts per trial.2 Some commentators have asserted that in the United States, trial by jury is evolving into trial by expert.3 If the number of expert witnesses is impressive, the volume of expert literature is awesome. Even apart from the number of published texts and treatises devoted to expert topics, the regular periodicals dealing with such subjects now number in the thousands. The National Institutes of Health’s Library of Medicine covers thousands of biomedical journals dating back to 1948.4 The Library includes Index Medicus, a database indexing domestic as well as international medical literature;5 4,945 journals are currently indexed in Medicus.6 MEDLARS is the Library’s computerized Medical Literature Analysis and Retrieval System.7 The volume of expert literature is not only * Edward J. Barrett, Jr. Professor of Law, University of California Davis. Former Chair, Evidence Section, American Association of Law Schools.
    [Show full text]
  • Forensic DNA Analysis: Issues
    US. Departmentof Justice Officeof JusticeProgmm Bureau of Justice Sta!ktics U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Steven D. Dillingham, Ph.D. Director Acknowledgments. This report was prepared by SEARCH Group, Inc., Gary L. Bush, Chairman, and Gary R. Cooper, Executive Director. The project director was Sheila J. Barton, Director, Law and Policy Program. This report was written by Robert R. Belair, SEARCH General Counsel, with assistance from Robert L. Marx, System Specialist, and Judith A. Ryder, Director, Corporate Communications. Special thanks are extended to Dr. Paul Ferrara, Director, Bureau of Forensic Science, Commonwealth of Virginia. The federal project monitor was Carol G. Kaplan, Chief, Federal Statistics and Information Policy Branch, Bureau of Justice Statistics. Report of work performed under B JS Grant No. 87-B J-CX-K079, awarded to SEARCH Group, Inc., 73 11 Greenhaven Drive, Suite 145, Sacramento, California 95831. Contents of this document do not necessarily reflect the views, policies or legal analyses of the Bureau of Justice Statistics or the U.S. Department of Justice. Copyright O SEARCH Group, Inc. 1991 The U.S. Department of Justice authorizes any person to reproduce, publish, translate or otherwise use all or any part of the copyrighted material in this publication with the exception of those items indicating that they are copyrighted or reprinted by any source other than SEARCH Group, Inc. The Assistant Attorney General, Office of Justice Programs, coordinates the activities of the following program offices and bureaus: the Bureau of Justice Statistics, National Institute of Justice, Bureau of Justice Assistance, Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime.
    [Show full text]
  • This Opinion Is Subject to Formal Revision Before Publication in the Atlantic and Maryland Reporters
    Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 13-CF-735 FLOYD E. BROOKS, APPELLANT, v. UNITED STATES, APPELLEE. Appeal from the Superior Court of the District of Columbia (CF1-24121-09) (Hon. Lynn Leibovitz, Trial Judge) (Argued May 5, 2015 Decided June 4, 2015) Thomas D. Engle, with whom Sharon L. Burka was on the brief, for appellant. John Cummings, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, and S. Vinet Bryant, Assistant United States Attorneys, were on the brief, for appellee. Before GLICKMAN and THOMPSON, Associate Judges, and FARRELL, Senior Judge. FARRELL, Senior Judge: A jury found appellant guilty of two counts of armed premeditated murder and related firearms offenses arising from the shooting deaths of brothers Robert and Raymond Williams. Appellant claims error in the 2 trial court’s twofold ruling that allowed the prosecutor (a) to impeach a defense witness, Vernon Parrish, with his prior inconsistent statements to defense counsel and a defense investigator disclosed in appellant’s in limine motion to admit Parrish’s third-party perpetrator testimony under Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc), and (b) to “complete the impeachment” by a stipulation of the parties that Parrish, contrary to his denials on the stand, had made the inconsistent statements to the defense team.
    [Show full text]
  • Teaching Evidence
    Saint Louis University Law Journal Volume 50 Number 4 (Summer 2006) Article 4 2006 Teaching Evidence Paul Rothstein Follow this and additional works at: https://scholarship.law.slu.edu/lj Part of the Law Commons Recommended Citation Paul Rothstein, Teaching Evidence, 50 St. Louis U. L.J. (2006). Available at: https://scholarship.law.slu.edu/lj/vol50/iss4/4 This Article is brought to you for free and open access by Scholarship Commons. It has been accepted for inclusion in Saint Louis University Law Journal by an authorized editor of Scholarship Commons. For more information, please contact Susie Lee. SAINT LOUIS UNIVERSITY SCHOOL OF LAW TEACHING EVIDENCE PAUL ROTHSTEIN* I teach Evidence in a four-hour course over one semester. It meets twice a week for fourteen weeks, two hours each session, which includes a ten-minute break in the middle of the session. I. COURSE OBJECTIVES I strive to instill knowledge of the law of evidence, proficiency in applying it, and a thoughtful and critical attitude toward it. I seek to equip students not only to function in the present, but also to anticipate and deal with the future. They should be able to handle change and understand the potential directions of change. They should be exposed to legal, factual, and cultural trends and developments that might affect the law we learn today. And they must be prepared to perform ethically. Even if many students will never actually try a case, I believe knowledge of evidence will help them in almost any function they may perform as lawyers, since so much depends, in shaping any legal transaction, upon what * Professor of Law at Georgetown University Law Center, specializing in Evidence, Torts, and other subjects related to civil and criminal litigation and the judicial process from the Supreme Court on down.
    [Show full text]
  • Reason #1 to Support a National Moratorium on Executions
    Reason #1 to Support a National Moratorium on Executions The National Death Penalty System is Seriously Flawed Resulting in Wrongful Convictions and Death Sentences • More than two out of every three capital judgments reviewed by the courts during a 23-year period were seriously flawed. Experts reviewed all the capital cases and appeals imposed in the United States between 1973 and 1995 at the state and federal levels. They found a national error rate of 68%. In other words, over two-thirds of all capital convictions and sentences are reversed because of serious error during trial or sentencing. This does not include errors that were not serious enough to warrant a reversal. • The federal government would not tolerate an error rate of 68% for any other government function - such as product safety or processing social security claims. Yet it allows this margin of error in the system that can take a person’s life. Only a moratorium puts an immediate halt to the risk of an innocent person being executed. • The error rate for capital cases is much higher than for other types of cases. At the direct appeal stage, serious or reversible error is detected in about 12 to 20% of the non-capital criminal cases that are appealed. • High error rates exist throughout the country and are not limited to certain states. Over 90% of states that have the death penalty have error rates of 52% or higher. 85% have error rates of 60% or higher. Three- fifths have error rates of 70% or higher. This is not an isolated problem but is universal in all death penalty states.
    [Show full text]